Weekly Case Digests — Jan. 19-23, 2015

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CIVIL

U.S. Supreme Court
Civil Procedure – MDL litigation – appeal

An order dismissing a party form an MDL proceeding is appealable.

Because cases consolidated for MDL pretrial proceedings ordinarily retain their separate identities, an order disposing of one of the discrete cases in its entirety should qualify under §1291 as an appealable final decision. Section 1407 refers to individual “actions” transferrable to a single district court, not to a monolithic multidistrict “action” created by transfer. See Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U. S. 26, 37. And §1407(a)’s language—“at or before the conclusion of . . . pretrial proceedings,” each transferred action must be remanded to the originating district “unless [the action] shall have been previously terminated”—indicates Congress’ anticipation that, during the pendency of pretrial proceedings, final decisions might be rendered in one or more of the actions consolidated pursuant to §1407. The District Court’s order dismissing the Gelboim-Zacher complaint was a final decision. The District Court completed its adjudication of petitioners’ complaint and terminated their action. Petitioners thus are no longer participants in the consolidated proceedings. Nothing about the initial consolidation of their civil action with other LIBOR MDL cases renders the dismissal of their complaint tentative or incomplete.

Reversed and remanded.

13-1174 Gelboim v. Bank of America Corp.

Ginsburg, J.

U.S. Supreme Court
Civil Rights – RLUIPA

A prison’s grooming policy violates RLUIPA insofar as it prevents a prisoner from growing a ½-inch beard in accordance with his religious beliefs.

In addition to the Department’s failure to prove that petitioner’s proposed alternatives would not sufficiently serve its security interests, the Department also fails to adequately explain the substantial underinclusiveness of its policy, since it permits ¼-inch beards for prisoners with medical conditions and more than ½ inch of hair on the head. Its failure to pursue its proffered objectives with regard to such “analogous nonreligious conduct” suggests that its interests “could be achieved by narrower ordinances that burdened religion to a far lesser degree.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546. Nor does the Department explain why the vast majority of States and the Federal Government can permit inmates to grow ½-inch beards, either for any reason or for religious reasons, but it cannot. Such evidence requires a prison, at a minimum, to offer persuasive reasons why it believes it must take a different course. See Procunier v. Martinez, 416 U. S. 396, 414, n. 14.

509 Fed. Appx. 561, reversed and remanded.

13-6827 Holt v. Hobbs

Alito, J.; Ginsburg, J., concurring; Sotomayor, J., concurring.

U.S. Court of Appeals For the Seventh Circuit Civil
Civil Rights – Brady violations

Police officers are not liable for a prosecutor’s failure to disclose exculpatory evidence.

“The defendants did not falsify any physical evidence or use any knowingly false testimony at trial. Cf. id. at 575. Beaman’s conspiracy allegations amount to a claim that the defendants are culpable solely for the prosecutor’s decision not to dis-close exculpatory evidence to Beaman’s attorneys. But our case law has established that the police generally discharge their Brady duty by turning over exculpatory evidence to the prosecutor, thereby triggering the prosecutor’s disclosure obligation. See Carvajal, 542 F.3d at 566.

Affirmed.

14-1195 Beaman v. Freesmeyer

Appeal from the United States District Court for the Central District of Illinois, McDade, J., Williams, J.

Wisconsin Court of Appeals
Contracts – breach – acceptance – remedies

APPEAL from a judgment of the circuit court for Racine County:  GERALD P. PTACEK, Judge.  Affirmed.

This case is a dispute over allegedly shoddy awnings manufactured and installed by Forman Awnings and Construction LLC for Reefpoint Brewhouse.  We affirm the circuit court’s conclusion that because Reefpoint accepted and used the awnings, it cannot rescind the contract but instead is limited to the remedy of reduction in the purchase price.

DISTRICT II; Racine County; GERALD P. PTACEK,BROWN, C.J.

2014AP001826-FT Forman Awnings and Construction, LLC v. LO Ventures, LLC

Wisconsin Court of Appeals
Contracts – statute of limitations

APPEAL and CROSS-APPEAL from a judgment of the circuit court for Walworth County:  JAMES L. CARLSON, Judge.  Affirmed in part; reversed in part and cause remanded.

This lawsuit relates to a dispute between two small businesses about the purchase and sale of a periodical publication.  The underlying contract was between two corporations, Flyer Publications, Inc. (the seller) and Richardson Ventures, Ltd. (the buyer), but the lawsuit was commenced by Jeffrey Parnau, the owner of Richardson Ventures, against David Weiman, the owner of Flyer Publications, Inc.  Eventually Parnau filed amended pleadings naming the proper corporate parties, but not before the statute of limitations on the corporation’s contract claims expired.

DISTRICT II; Walworth County; JAMES L. CARLSON; Brown, C.J., Reilly and Gundrum, JJ.

2013AP001795 Jeffrey Parnau v. David Weiman

U.S. Supreme Court
Employment – Whistleblower protection

An air marshall’s disclosure that the TSA had cancelled flights due to terrorism concerns was not prohibited.

MacLean’s disclosure was not prohibited by the TSA’s regulations for purposes of Section 2302(b)(8)(A) because regulations do not qualify as “law” under that statute. Throughout Section 2302, Congress repeatedly used the phrase “law, rule, or regulation.” But Congress did not use that phrase in the statutory language at issue here; it used the word “law” standing alone. Congress’s choice to say “specifically prohibited by law,” instead of “specifically prohibited by law, rule, or regulation” suggests that Congress meant to exclude rules and regulations. In addition, Section 2302(b)(8)(A) creates a second exception for disclosures “required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.” That the second exception is limited to actions by the President himself suggests that the first exception does not include action taken by executive agencies. Finally, interpreting the word “law” to include rules and regulations could defeat the purpose of the whistle-blower statute. That interpretation would allow an agency to insulate itself from Section 2302(b)(8)(A) simply by promulgating a regulation that “specifically prohibited” all whistleblowing.

714 F. 3d. 1301, affirmed.

13-894 DHS v. MacLean

Roberts, C.J.; Sotomayor, J., dissenting.

Wisconsin Court of Appeals
Family – contempt

APPEAL from an order of the circuit court for Dane County:  RICHARD G. NIESS, Judge.  Affirmed.

Leslie Martin appeals the circuit court’s order holding him in continuing contempt for failing to make an equalization payment that the court ordered in this divorce case.[2]  Leslie argues that the circuit court improperly exercised its discretion in granting Jeanne Martin’s motion for contempt because the amount of the equalization payment at issue was erroneous or ambiguous and because he did not willfully or intentionally withhold payment.  He also argues that the court improperly exercised its discretion in setting remedial sanctions for the contempt that caused him to suffer harsh tax consequences and had no evidentiary basis.  For the following reasons, I affirm.

DISTRICT IV; Dane County; RICHARD G. NIESS, BLANCHARD, P.J.

2014AP000626 Leslie E. Martin, III v. Jeanne S. A. Martin

Wisconsin Court of Appeals
Family – Paternity

Even though DNA tests showed the petitioner was a child’s father, rather than the mother’s husband, the circuit court properly disregarded the tests because they were not done pursuant to court order.

“We conclude the circuit court properly dismissed Stuart’s paternity action under WIS. STAT. § 767.863(1m).  The circuit court correctly disregarded the genetic testing upon which Stuart relies because it was not completed pursuant to court order, and the court properly determined a judicial determination that Stuart was A.R.R.’s father would not be in A.R.R.’s best interest.  We also conclude dismissal of the paternity action did not violate Stuart’s constitutional rights as A.R.R.’s putative father because his relationship with A.R.R. was not substantial enough to give rise to a constitutionally protected liberty interest.  We therefore affirm.”

Affirmed.

Recommended for publication in the official reports.

2014AP1487 Stuart S. v. Heidi R.

Dist. III, Burnett County, Kutz, J., Stark, J.

Wisconsin Court of Appeals
Family – child support – modification

APPEAL and CROSS-APPEAL from an order of the circuit court for Ozaukee County:  SANDY A. WILLIAMS, Judge.  Affirmed.

PER CURIAM.   This is the latest chapter in the ongoing child-support dispute between Michael Dietzen and Jacki Anderson.  Dietzen appeals the portions of an order that denied his motions to reduce child support and for sanctions against Anderson and granted Anderson’s motion for revised child support.  Anderson cross-appeals the portion of the order making her solely responsible for the minor child’s variable expenses.  Dietzen and Anderson both move for sanctions, costs, and attorney fees on grounds that the other’s appellate position is frivolous.  We affirm the order and deny both motions.

DISTRICT II; Ozaukee County; SANDY A. WILLIAMS; Neubauer, P.J., Reilly and Gundrum, JJ.

2014AP000497 State v. Michael Dietzen

Wisconsin Court of Appeals
Family – premarital agreements

APPEAL from a judgment of the circuit court for Milwaukee County:  MARSHALL B. MURRAY, Judge.  Affirmed.

PER CURIAM.    Donald E. Goelz, pro se, appeals a judgment of divorce awarding his wife, Karen M. Goelz (now known as Karen Geis), one half of his Wisconsin Retirement System pension.  Goelz’s primary objections are to the circuit court’s invalidation of a premarital agreement and the subsequent division of the pension.  Goelz also appears to take issue with the circuit court’s division of other property and the decision on child support for the parties’ minor child.  We discern no erroneous exercise of discretion by the circuit court, so we affirm the judgment.

DISTRICT I; Milwaukee County; MARSHALL B. MURRAY; Kessler and Brennan, JJ., and Thomas Cane, Reserve Judge

2014AP000103 Donald E. Goelz v. Karen M. Goelz

U.S. Supreme Court
Intellectual Property – Trademarks – tacking

Whether two trademarks may be tacked for purposes of determining priority is a question for the jury.

Each of petitioner’s four arguments in support of its view that tacking is a question of law to be resolved by a judge is unpersuasive. First, it may be true that the “legal equivalents” test involves a legal standard, but such “ ‘mixed question[s] of law and fact,’ [have] typically been resolved by juries.” Gaudin, 515 U. S., at 512. And any concern that a jury may improperly apply the relevant legal standard can be remedied by crafting careful jury instructions. Second, petitioner offers no support for its claim that tacking determinations create new law in a unique way that requires those determinations to be reserved for judges. Third, petitioner worries that the predictability required for a functioning trademark system will be absent if tacking questions are assigned to juries, but offers no reason why trademark tacking should be treated differently from the tort, contract, and criminal justice systems, where juries answer often-dispositive factual questions or make dispositive applications of legal standards to facts. Finally, in arguing that judges have historically resolved tacking disputes, petitioner points to cases arising in the contexts of bench trials, summary judgment, and the like, in which it is undisputed that judges may resolve tacking disputes.

735 F. 3d. 1158, affirmed.

13-1211 Hana Financial, Inc., v. Hana Bank

Sotomayor, J.

U.S. Supreme Court
Intellectual Property – Patents – standard of review

When reviewing a district court’s resolution of subsidiary factual matters made in the course of its construction of a patent claim, the Federal Circuit must apply a “clear error,” not a de novo, standard of review.

This leaves the question of how the clear error standard should be applied when reviewing subsidiary factfinding in patent claim construction. When the district court reviews only evidence intrinsic to the patent, the judge’s determination is solely a determination of law, and the court of appeals will review that construction de novo. However, where the district court needs to consult extrinsic evidence in order to understand, for example, the background science or the meaning of a term in the relevant art during the relevant time period, and where those subsidiary facts are in dispute, courts will need to make subsidiary factual findings about the extrinsic evidence. The district judge, after deciding the factual dispute, will then interpret the patent claim in light of the facts as he has found them. The ultimate construction of the claim is a legal conclusion that the appellate court can review de novo. But to overturn the judge’s resolution of an underlying factual dispute, the appellate court must find that the judge, in respect to those factual findings, has made a clear error.

723 F. 3d 1363, vacated and remanded.

13-854 Teva Pharmaceuticals USA, Inc., v. Sandoz, Inc.

Breyer, J.; Thomas, J., dissenting.

U.S. Court of Appeals For the Seventh Circuit Civil
Labor – Contempt – remedies

The party alleging contempt of an injunctive order had a right to compensatory relief for damages suffered as a result of the contempt, even after the main action has terminated.

“As the district court reasoned, any other interpretation of this rule would eviscerate the effect of Rule 10(j), as a party could simply continue its violation or delay a final finding of contempt long enough that the district court order expired by its own terms. See Barker ex rel. NLRB v. Latino Express, Inc., No. 11-C-2383, p.4 (N.D. Ill. March 1, 2013) (R. 98, p.4).”

“In this case, the Director sought, and the court granted, coercive relief in the form of prospective fines for Latino Express’s future non-compliance with the contempt order. These may no longer be imposed to coerce Latino Express’s compliance with the order upon termination of the injunction. On the other hand, the district court also granted compensatory relief in the form of payment to Garcia and Salgado for backpay incurred by Latino’s failure to promptly rein-state the employees as ordered by the district court, as well as compensatory relief to the Director for fees, costs and expenditures incurred by the contemptuous acts. This grant of relief survives the termination of the underlying preliminary injunction.”

Affirmed.

12-2828 Ohr v. Latino Express, Inc.

Appeal from the United States District Court for the Northern District of Illinois, Grady, J., Rovner, J.

Wisconsin Supreme Court
Professional Responsibility – Revocation

Where attorney Emory H. Booker, III, neglected his clients’ needs and disregarded his obligations as an attorney, revocation is appropriate discipline.

“The undisputed facts show a clear pattern of neglect by Attorney Booker of his clients’ needs and objectives, which is especially troubling given that most of Attorney Booker’s clients were in serious financial distress and thus were in a particularly vulnerable position.  Attorney Booker also showed a patent disregard for his obligations as an attorney.  He made a habit of providing inaccurate or misleading information to his clients and to the courts.  He ignored court orders and requirements.  He repeated his misconduct again and again, in scores of cases in federal and state courts over a lengthy period.  He has never acknowledged his wrongdoing.  He has failed to fully cooperate with the disciplinary process.  License revocation is necessary in this case to impress upon Attorney Booker the seriousness of his professional misconduct, to protect the public from similar misconduct in the future, and to deter other attorneys from engaging in similar misconduct.”

2013AP505-D OLR v. Booker

Per Curiam.

Wisconsin Supreme Court
Professional Responsibility – Public reprimand

Where attorney Khaja M. Din accepted significant payments without performing the services, a public reprimand is appropriate.

“With respect to the appropriate level of discipline, upon careful review of the matter, we agree with the referee that Attorney Din’s misconduct warrants a public reprimand.  Even though Attorney Din had been practicing law for only a few years at the time he undertook the representations that gave rise to this case, and even though he has no prior disciplinary history, he pled no contest to eight counts of misconduct involving four clients, and he does not dispute the fact that he owes restitution of $14,250.  The misconduct allegations at issue here are not insignificant, nor are the violations technical in nature.  Attorney Din took fees from clients and failed to complete the agreed upon services.  When the clients asked for refunds, he refused to provide them.”

2012AP2695-D OLR v. Din

Per curiam.

Wisconsin Court of Appeals
Property – foreclosure – land contracts

APPEAL from orders of the circuit court for Douglas County:  KELLY J. THIMM, Judge.  Affirmed.

PER CURIAM.   Gayle General appeals two orders: an October 29, 2013 order confirming a judgment of strict foreclosure in favor of Mark Johnson Construction, Inc. (Johnson) and terminating the redemption period; and (2) a December 3, 2013 writ of assistance authorizing the sheriff to remove General from the premises.[1]  General failed to file any affidavits opposing Johnson’s summary judgment motion, and she conceded at the motion hearing that she breached the land contract at issue.  We affirm the orders.

DISTRICT III; Douglas County; KELLY J. THIMM; Hoover, P.J., Stark and Hruz, JJ.

2013AP002770 Mark Johnson Construction, Inc. v. Gayle M. General

Wisconsin Court of Appeals
Torts – premises liability – safe place statute

APPEAL from a judgment and an order of the circuit court for La Crosse County:  RAMONA A. GONZALEZ, Judge.  Affirmed in part; reversed in part and cause remanded for further proceedings.

This tort case resulted from injuries that James Chartier suffered when he allegedly tripped over a protrusion or elevation differential on a concrete pad.  The concrete pad was located next to a building owned by Brian and Barbara Benson, and straddled property owned by the Bensons and property owned by the City of La Crosse.  The pad was the foundation that remained after the Bensons hired and directed a construction contractor, Howard Davis, to remove an enclosure that housed an automated teller machine on the side of the Bensons’ building.  Davis removed the ATM enclosure approximately six months before Chartier’s fall.

DISTRICT IV; La Crosse County; RAMONA A. GONZALEZ, Blanchard, P.J., Sherman, Kloppenburg, JJ.

2013AP002238 James Chartier v. Brian D. Benson

CRIMINAL

Wisconsin Court of Appeals
Criminal Procedure – ineffective assistance

APPEAL from an order of the circuit court for Sauk County:  JAMES EVENSON, Judge.  Affirmed.

William Berlin appeals an order denying Berlin’s postconviction motion for relief under Wis. Stat. § 974.06 (2011-12).[1]  Berlin contends that he was denied the effective assistance of counsel at trial when his counsel: failed to object to, and introduced, inadmissible evidence; inadequately prepared for trial; inadequately cross-examined State witnesses; failed to conduct an adequate investigation; and failed to present a reasonable theory of defense.  For the reasons set forth below, we reject each of these contentions.  Because we reject each of Berlin’s claims of ineffective assistance of counsel, we also reject Berlin’s claim that the cumulative effect of those errors should undermine our confidence in the outcome of the trial.  We affirm.

DISTRICT IV; Sauk County; JAMES EVENSON, Blanchard, P.J., Sherman, Kloppenburg, JJ.

2013AP002817 State v. William E. Berlin

Wisconsin Court of Appeals
Criminal Procedure – ineffective assistance

APPEAL from an order of the circuit court for Winnebago County:  SCOTT C. WOLDT, Judge.  Affirmed.

Sheldon Scheel, pro se, appeals an order denying his postconviction motion filed pursuant to Wis. Stat. § 974.06 (2011-12).[1]  On appeal, Scheel argues that his due process rights were violated when the State failed to disclose certain evidence to him prior to trial.  For the reasons set forth below, we affirm the order of the circuit court.

DISTRICT II; Winnebago County; SCOTT C. WOLDT, Blanchard, P.J., Sherman, Kloppenburg, JJ.

2013AP002464 State v. Sheldon R. Scheel

Wisconsin Court of Appeals
Criminal Procedure – new trials – newly discovered evidence

APPEALS from orders of the circuit court for Milwaukee County:  DAVID L. BOROWSKI, Judge.  Affirmed.

PER CURIAM.    Will Haywood appeals the orders denying his motion for postconviction relief based on newly discovered evidence and the motion for reconsideration that followed.  We affirm.

DISTRICT I; Milwaukee County; DAVID L. BOROWSKI; Kessler, Brennan, JJ., and Thomas Cane, Reserve Judge

2014AP000484 State v. Will Haywood

Wisconsin Court of Appeals
Criminal Procedure – appeal – waiver

APPEAL from a judgment and an order of the circuit court for Milwaukee County:  DAVID L. BOROWSKI, Judge.  Affirmed.

PER CURIAM.   Andre Derrick Wingo, pro se, appeals a judgment convicting him of failing to register as a sex offender.  He also appeals an order denying his motion for postconviction relief.  He argues that:  (1) the charge against him should have been dismissed because the Department of Corrections did not properly notify him of his obligation to register as a sex offender; and (2) he was unable to register as a sex offender because he was homeless.  We affirm.

DISTRICT I; Milwaukee County; DAVID L. BOROWSKI; Curley, P.J., Brennan, J., and Thomas Cane, Reserve Judge.

2014AP000280-CR           State v. Andre Derrick Wingo

Wisconsin Supreme Court
Criminal Procedure – Judicial substitution – harmless error

armless error analysis does not apply when the circuit court erred by presiding over the defendant’s trial, sentencing, and postconviction motions after the defendant filed a timely and proper Wis. Stat. § 971.20 request for substitution of judge, the request was granted, and a new judge was appointed.

“Thus, by seeking to impose a harmless error analysis in the present case, the State attempts to insert a condition for substitution that the legislature has deliberately refused to impose.  The court should not add an element to the substitution statute that the legislature did not enact.”

In sum, application of a harmless error analysis in the present case would undercut Wis. Stat. § 971.20 by nullifying the defendant’s statutory right to request and obtain substitution without any showing of prejudice.  The text of Wis. Stat. § 971.20 controls the disposition of the instant case.  The statutory violation in the instant case is simply not amenable to harmless error review, and the case law does not permit us to apply a harmless error analysis.  Thus, we decline to do so.”

Affirmed.

2013AP298-CR State v. Harrison

Abrahamson, C.J.

Wisconsin Court of Appeals
Criminal Procedure – Plea withdrawal – immigration consequences

“Pursuant to WIS. STAT. RULE 809.61 (2011-12), this appeal is certified to the Wisconsin Supreme Court for its review and determination.”

“How definite or imminent must deportation be in order for it to be ‘likely,’ such that a defendant may withdraw a guilty or no contest plea on the basis that he or she was not informed of the immigration consequences at the plea colloquy?  If, in order to withdraw the plea, the defendant must show that deportation proceedings are underway, how does this standard fit in with the time limits for a motion to withdraw the plea?”

Questions certified.

2014AP678, 2014AP679 & 2014AP680 State v. Valadez

Dist. II

Wisconsin Court of Appeals
Motor Vehicles – OWI – reasonable suspicion

APPEAL from a judgment of the circuit court for Calumet County:  JEFFREY S. FROEHLICH, Judge.  Affirmed.

Lisa Dolajeck appeals her conviction for operating a motor vehicle while intoxicated (OWI).  Dolajeck argues that police did not have reasonable suspicion to stop her vehicle and that the officer’s failure to make a videotape recording of the events leading up to her arrest warranted dismissal of the charges against her.  We affirm Dolajeck’s conviction.

2014AP002100 County of Calumet v. Lisa L. Dolajeck

Dist. II; Calumet; JEFFREY S. FROEHLICH, REILLY, J.

Wisconsin Court of Appeals
Search and Seizure – warrantless blood draws

APPEAL from a judgment of the circuit court for Winnebago County:  DANIEL J. BISSETT, Judge.  Affirmed.

PER CURIAM.   Andy J. Parisi appeals from a judgment convicting him of possession of narcotic drugs.  He contends that the circuit court erred in denying his motion to suppress evidence obtained from a warrantless blood draw.  We disagree and affirm.

DISTRICT II; Winnebago County; ANIEL J. BISSETT; Brown, C.J., Reilly and Gundrum, JJ.

2014AP001267-CR State v. Andy J. Parisi

U.S. Court of Appeals For the Seventh Circuit
Search and Seizure – GPS devices – exclusionary rule

Where officers acted in good-faith reliance on existing precedent when they placed a GPS device on defendant’s car without a warrant, suppression of the evidence is not required.

“The government explained at oral argument that the reference to ‘private property’ accessible to ‘the general public’ meant only that the GPS unit could be attached when the car was in a shopping-mall parking lot or comparable location. This language did not authorize entry into Taylor’s garage or his driveway. Taylor’s counsel did not dispute that characterization. And at the time of these events, Garcia was binding appellate precedent for the proposition that attaching a GPS unit to a car parked on a public street was not a search. See Garcia, 474 F.3d at 996–97; Cuevas-Perez, 640 F.3d at 273–74. The privacy interest in a car parked in a shopping-center parking lot or similar public location is no greater than the privacy interest in a car parked on a public street.”

Affirmed.

14-1981 U.S. v. Taylor

Appeal from the United States District Court for the Southern District of Indiana, Magnus-Stinson, J., Per curiam.

Wisconsin Court of Appeals
Search and Seizure – warrantless vehicle searches – reasonable suspicion

APPEAL from a judgment of the circuit court for Walworth County:  JOHN R. RACE and DAVID M. REDDY, Judges.  Affirmed.

Ryan Villarreal appeals a judgment of conviction for possession of a firearm, false imprisonment, misdemeanor battery, and two counts of obstructing a police office.  Villarreal contends the circuit court erred in denying his motion to suppress evidence obtained from the warrantless search of his vehicle.  For the reasons discussed below, we affirm.

DISTRICT II; Walworth County; JOHN R. RACE, DAVID M. REDDY, Lundsten, Higginbotham, Sherman, JJ.

2014AP000571-CR           State v. Ryan O. Villarreal

Wisconsin Court of Appeals
Sentencing – repeater enhancement

APPEAL from an order of the circuit court for Lincoln County:  ROBERT RUSSELL, Judge.  Affirmed.

PER CURIAM.   David King appeals an order denying his motion to reduce his sentence by vacating the portion of the sentence attributable to the repeater enhancement.  He argues:  (1) the court failed to make a finding that he was a repeat offender; (2) the presentence investigation report (PSI) was not adequate to prove his repeater status because it lacked sufficient specificity necessary to constitute a reliable government report; (3) the PSI lacked specificity regarding the dates of prior conviction and incarceration; and (4) King was denied his due process right to challenge the evidence of his repeater status.  We reject these arguments and affirm the order.

DISTRICT III; Lincoln County; ROBERT RUSSELL; Hoover, P.J., Stark and Hruz, JJ.

2014AP001133-CR           State v. David A. King

U.S. Court of Appeals For the Seventh Circuit Criminal
Sentencing – Supervised release

Conditions of supervised release must be sufficiently precise as not to afford probation officers unlimited discretion in their interpretation.

“The government in defending the conditions of supervised release imposed in these four cases relies not on case law but rather on the proposition that the defendant can ask the probation officer what a condition means, and the officer will give him a sensible answer. This is some protection against unreasonable or ambiguous conditions, but not enough. It is too much like telling a defendant he’ll be on supervised release until the probation officer decides he’s been on it long enough, or that if he isn’t sure what is ‘excessive use of alcohol’ he should ask the probation officer. As a practical matter the terms of supervised release would be determined not by a judge but by a probation officer exercising an essentially unlimited discretion (for example to define ‘excessive use of alcohol’). The law doesn’t authorize that. United States v. Tejeda, 476 F.3d 471, 473–74 (7th Cir. 2007). It’s true that probation officers are employees of the federal judiciary, but so are law clerks and judges’ secretaries, yet they are not allowed to decide the sentences of convicted defendants.”

Reversed and Remanded.

14-1316, 14-1521, 14-1676 & 14-1772 U.S. v. Thompson

Appeal from the United States District Court for the Southern District of Illinois, Reagan, J., Posner, J.

U.S. Court of Appeals For the Seventh Circuit
Sentencing – Criminal history

The district court did not err in counting defendant’s state court convictions as part of his criminal history, rather than as part of the instant offense.

“It is undisputed that Butler’s 90-day sentence for forgery was imposed after the conduct underlying the instant offense, but prior to sentencing on the instant offense. Butler maintains, however, that the  offense conduct associated with the forgery conviction does not fall within the ambit of § 4A1.2 because that conviction was the last in an unabated series of counterfeiting offenses that culminated in the instant conviction. We disagree. While it is ‘well established that in determining a defendant’s sentence a court may consider a broad range of information,’ United States v. Valenti, 121 F.3d 327, 334 (7th Cir. 1997), with respect to whether a defendant’s prior conduct should be considered relevant conduct under § 1B1.3, the court looks to the ‘similarity, regularity, and temporal proximity of the uncharged acts to the offense of conviction.’ United States v. Sykes, 7 F.3d 1331, 1336 (7th Cir. 1993). If one of those three factors is not present, the court must look for ‘a stronger presence of at least one of the other factors.’ U.S.S.G. § 1B1.3 cmt. n.9(B). In Butler’s case, the similarities between the instant offense and the state forgery conviction are minimal. The fact that both offenses involve counterfeit currency does not, independently, demonstrate that they are part of the same course of conduct. The Guidelines compel us to conduct a more searching inquiry to determine whether there are distinctive similarities between the offense of conviction and the prior conduct that indicate that they are not isolated, unrelated events that happen only to be similar in kind. Where, as here, the prior conduct takes place over one hundred miles away from the conduct underlying the instant offense, is relatively remote temporally, and involves entirely different victims, means, and purposes, we cannot say that it is sufficiently connected to the instant offense to qualify as part of the same course of conduct for the purposes of § 1B1.3.”

Affirmed.

14-2770 U.S. v. Butler

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Bauer, J.

Wisconsin Court of Appeals
Sexual Assault of a Child – complaint – technical defects

APPEAL from a judgment and an order of the circuit court for Wood County:  GREGORY J. POTTER, Judge.  Affirmed.

This case involves two acts of the legislature, 2005 Wis. Act 430 and 2005 Wis. Act 437, both of which amended Wis. Stat. §§ 948.02 and 948.025 (2003-04) and were enacted on the same day in 2006.  Robert J. Tisland appeals a judgment of conviction, following a jury trial, of one count of repeated sexual assault of a child, in violation of §§ 948.02(1)(b) and 948.025(1)(a) (2005-06) and a circuit court order denying his postconviction motion for relief.  He seeks dismissal of the charge.

DISTRICT IV; Wood County; GREGORY J. POTTER, Blanchard, P.J., Lundsten, Higginbotham, JJ.

2012AP001570-CR State v. Robert J. Tisland

Wisconsin Supreme Court
Sexually Violent Persons – Expert testimony

The Daubert evidentiary standard does not apply to discharge petitions, where the initial confinement action commenced prior to February 1, 2011.

“We conclude that the Daubert evidentiary standard under Wis. Stat. § 907.02(1) does not apply to expert testimony in Alger’s and Knipfer’s Wis. Stat. ch. 980 discharge petition trials because their discharge petitions did not ‘commence’ ‘actions’ or ‘special proceedings.’ The Daubert standard applies to ‘actions’ or ‘special proceedings’ commenced on or after February 1, 2011.  The original Chapter 980 commitments here began several years before the Daubert standard was adopted, and although Alger’s and Knipfer’s petitions seek relief from those original commitments, those filings do not constitute the ‘commencement’ of an ‘action’ or a ‘special proceeding.’ We also conclude that because the legislature had a rational basis for not applying the Daubert evidentiary standard to expert testimony in post-Daubert Chapter 980 discharge petitions that seek relief from pre-Daubert Chapter 980 commitments, no violation of equal protection or due process occurred.”

Affirmed.

2013AP225 & 2013AP578 State v. Alger

Ziegler, J.